In re Young's Estate
| Decision Date | 31 May 1911 |
| Citation | 116 P. 95,59 Or. 348 |
| Parties | In re YOUNG'S ESTATE. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Umatilla County; H.J. Bean, Judge.
Application by Mabel Warner for the probate of an alleged will of James W. Young, deceased, to which certain beneficiaries under a former will filed objections. From an order of the circuit court granting probate on appeal from a decree of the probate court refusing probate, contestants appeal. Reversed.
James W. Young, a resident of Weston, Umatilla county, Or., died on the 26th day of August, 1905, leaving real and personal property, approximately of the value of from $30,000 to $40,000. He left a will, bequeathing a farm in Umatilla county to Mrs. Nora Watts, a niece, making no disposition of his other property, which, in the absence of testamentary disposition, devolved upon certain nephews and nieces who were parties to this proceeding in the court below. The will was admitted to probate on September 19, 1905, and B.B. Hall was appointed administrator of the estate. The proponent of the will now in controversy is a niece of deceased and also his stepdaughter, being the daughter of his brother. Her mother was divorced from her first husband and subsequently married deceased, and in about the year 1891 she separated from him and secured a divorce. Mabel Warner, then Mabel Young, remained in the care of deceased who paid for her care and education until 1893, when she went to stay with her mother, and later married one Cain, by whom she had four children and from whom she was subsequently divorced thereafter marrying Warner, her present husband. Under circumstances which will be mentioned in the opinion, she professed to have found in the custody of Hall, the administrator of Young's estate, a will, purporting to give to Nora Watts, a niece of deceased, the sum of $300; to Fred Young, nephew of deceased, and brother of proponent $500; to Grace Rogers, a niece, $300; and to proponent the residue of the estate, with a request to pay to one Mrs Picard the sum of $15 per month for life. This will purported to have been witnessed by Hon. John McCourt, now United States district attorney, and W.A. Larkins, and was dated October 8, 1893. It was placed in the hands of a firm of attorneys for probate, but upon inquiry the alleged witnesses disclaimed any connection with it, and it was not probated. It is practically conceded to be a forgery.
Later another one of her attorneys received through the mail an instrument purporting to be the will of deceased, bequeathing to Fred Young, a nephew, $1,000; to Lile Young and Norman Young, nephews, $300 each; to Mrs. Picard, a friend, $500 and to proponent $10,000; and all the real and personal property of deceased. This will was also repudiated by the alleged witnesses, and it is practically conceded to be a forgery. Proponent was indicted for forgery, but was not convicted. She thereafter commenced a suit in equity to recover the estate of deceased upon an alleged contract made by him to her mother, at the time of her divorce from him, wherein it was claimed that he agreed that, in consideration of the mother making no claim for alimony, he would bequeath all his property to proponent. She was defeated in this suit. On February 4, 1909, proponent presented to the county court for probate an instrument purporting to be the will of deceased which reads as follows:
Proponent claimed that this will was sent to her by mail in a sealed envelope, together with an old memorandum book which she identified as one long used by deceased, and that the sender was unknown to her. This book with its entries was introduced for the purpose of comparison to identify the handwriting of the entries therein with the will in question. For the same purpose proponent also introduced two letters purporting to have been written by deceased; one to proponent, dated September 30, 1904, and known in this record as defendant's Exhibit 51, and another purporting to be from deceased to Clara Young, the wife of proponent's brother, dated August 2, 1905, and designated as plaintiff's Exhibit E. Other facts appear in the opinion. The county court found against the validity of the proposed will, and proponent appealed to the circuit court, which reversed the decision and admitted the instrument in probate. From this decree contestants have appealed to this court.
Fee & Slater and Frederick Steiwer, for appellants.
Douglas W. Bailey, for respondent.
McBRIDE, J. (after stating the facts as above).
We are forced to the conclusion that the alleged will is a forgery. And not only that it is a forgery, but that the letters and exhibits produced by proponent to sustain it are also forgeries. It is practically conceded, and no reasonable person can doubt, that both the alleged wills previously produced, which purported to convey the bulk of the property of deceased to proponent, were bold, impudent forgeries. It is a fair presumption that they were made in the interest and at the instigation of the person who was to profit by them. They were discovered in the possession of proponent, and there is nothing in the evidence indicating that she had any friend so interested in her welfare as to forge wills in her favor. It is true that one of them came not directly to her but to her attorney, who, as an honorable gentleman, declined to act upon it. But it would be an easy matter for proponent herself or some one in her behalf to mail it to her attorney. The wills were for her benefit. Who but she could have an interest in fabricating them. But there is direct and reliable testimony connecting her with the fabrication of the first alleged will in her favor. B.B. Hall, who was appointed administrator of Young's estate, testifies that he made exhaustive search for papers belonging to Young and found no will, except the one first admitted to probate. He kept the papers of deceased at the bank in a private box that he had used during his lifetime and was thoroughly familiar with them, and is positive that the pretended will was not among them.
In April, 1906, proponent called upon him at the bank and asked for permission to look over Young's papers. This was granted and proponent in company with her brother, Fred Young, went with witness into the private room of the bank and the box was placed upon the table, proponent sitting on one side and witness on the other, with the box between them. While proponent was examining the contents of the box, Fred Young made some inquiry as to the location of a lot in Weston, and proponent attracted the attention of witness for a moment to a plat of the town, which hung on the wall behind him. When he turned his attention to the box again he found the envelope containing the first alleged will in favor of proponent in the box. He took it up and proponent said: To which question witness answered, "Not to exceed a minute or two minutes, Madam; just since you dropped it in there." Hall swears that he knows that the alleged will had not been there previously, and he is a reliable and disinterested witness. The theory of proponent that Hall was hiding or suppressing the document is absurd. If he knew the box contained a will he had only to refuse to permit her to examine it or to have first removed it from the box and then allowed an examination. The conclusion is irresistible that she placed the alleged will in the box while his attention was diverted to the map. Her connection with the will sent to Carter is not so clearly shown, though the letters in the signature of J.W. Young, in all three of the alleged wills, are spaced so nearly alike that they might be superimposed one upon the other and practically coincide. It is a practical impossibility for a man to write his name three times exactly alike, and this similarity is strong evidence that all three signatures were traced from a single genuine signature. Here we have evidence connecting proponent with the fabrication of two false wills and when she produces a third, its genuineness is at least open to suspicion. The interest of proponent to forge a will and her disposition to do so are established not only by the facts above stated but by other evidence as well. Thus on November 29, 1905, she wrote as a postscript to a letter to Phelps & McCourt, who at one time had been employed by her to ascertain whether she had been legally adopted by deceased, and who had told her she was "chasing a rainbow," the following: This testimony was excluded on the trial as a privileged communication. But we think it was admissible, as the relation of attorney and client had terminated at the time the letter was written, and it also contained an indirect threat to commit forgery and such a communication is never privileged.
The proponent, having voluntarily gone upon the stand as a witness upon the general subject, waived the right in any event to object to the examination of Judge Phelps. L.O.L. § 734. She also told Mrs. Eastland that if she could not get the property one way she would another, and the testimony is abundant to indicate a...
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